At, High Court of Judicature at Patna
By, THE HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
For the Petitioners: Manan Kumar Mishra, Sr. Advocate, Awanish Kumar Pandey, Advocate. For the Respondent: ---
As the facts of both the cases and reliefs prayed are similar, they have been heard together and are being disposed of by this common order.
The petitioners in both the cases were deed writers in the Registry offices in the district of East Champaran and West Champaran. The petitioners have prayed for directions to respondents to allow them to continue to do the work of deed writers since they have gained a long experience over the years. Some of the petitioners got licence of deed writing in the year 1981, whereas others got licence in different years. In order to improve the quality of deed writing, the State Government brought an Ordinance in March, 1991 and amended section 68 and 69 of the Registration Act, 1908 by adding sections 68A, 68B, 69(bb) etc.
Section 68A of the Registration Act prescribes prohibition of unlicensed person from being in the vocation of Deed Writers. Section 68B provides for grant of licence to document writers. Section 68 B(2) provides that a licence can be granted to any person who has been in profession of document-writer for at least ten years prior to the date of the Registration (Bihar Amendment) Ordinance, 1991 came into force, without requiring him to appear in the written test referred to in sub-section(i) of section 68B. Section 69(bb) provides for framing of rules for grant of licence to the deed writers including its suspension a
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d cancellation. The ordinance was replaced by Bihar Act 6 of 1991 promulgated on 8.9.1991. The rules were framed only in the year 1996 and notified on 13.3.1997. The first examination in terms of section 68B and the rules framed thereof was held in the year 2000. Some deed writers challenged the Bihar Deed Writers Licenses Rules, 1996 (hereinafter referred to as ‘the Rules,1996’) as illegal and ultra vires the Constitution of India and inconsistent with the Registration Act in C.W.J.C. Nos. 3089 of 1991, 5325 of 1997, 4994 of 1996 and3036 of 1991. The Division Bench heard all these writ applications analogous. The challenge of the petitioners Awdhesh Tiwary & Ors that the rules are illegal and ultra vires the Constitution was rejected. The learned Judges upheld Rule 3(c) which stated that those deed writers who had been in the profession and had completed 10 years of professional experience on 31.7.1991, when the said Amendment Act, 1991 came into force are not required to pass the examination for grant of licence. However, all other deed writers who have not put in 10 years of vocation in deed writing profession would not be qualified to do deed writing without passing the requisite examination.In the meantime, the Registration Department, East Champaran in terms of amended section 68(B) and Rule 3(C) issued memo no.1988 dated 20.12.2001, whereby it directed that the documents presented by document writers having licence shall only be admitted for registration and those persons who had not put in 10 years of service on the date of coming into force the Bihar Act 6 of 1991 would not be granted licence to practice unless and until they clear the examinations. The aforesaid memo dated 20.12.2001 of District Sub-Registrar was challenged in C.W.J.C.No.959 of 2003 (Arbind Prasad & Ors Vs State & Ors) which was heard analogous with C.W.J.C. No. 986 of 2003 and C.W.J.C.No.1742 of 2002. The petitioners therein contended that as Rule 1995 came into force on 13.3.1997, persons who had completed 10 years of profession in document writing by then, should be exempted from taking examination in terms of section 68B and Rules 1996. The contention was rejected and the writ applications were dismissed. The learned Judge held that licence can be granted to a person without appearing in the test if he has been in profession of document writers for at least 10 years prior to date of Registration Bihar Amendment Ordinance 1991 coming into force e.g. 30.7.1991.It is relevant to state that some of the persons who challenged the constitutional validity of Bihar Deed Licensing Rules, 1996, moved the Hon’ble Apex Court in Civil Appeal No.3794-3795 of 1999. The Hon’ble Apex Court observed that a licence could be granted without passing the examination of document writers provided he worked as document writers for at least 10 years prior to date of registration (Bihar Amendment Act 1951) and the Rules made there under. The Apex Court dismissed the writ application being infructuous on account of efflux of time. The petitioners have sought direction to respondents to allow them to continue to do the work of deed writing primarily in view of decision rendered by a learned Single Judge in C.W.J.C.No.1172/2003 disposed of on 10.8.2007 in (Arjun Prasad & Ors Vs State of Bihar). In the said case the petitioners have prayed for allowing them to continue as deed writers, as the rules were framed belatedly in the year 1996 and the examination was held only in the year 2000. The contention of the petitioners was that the amended section 68A and 68B which prohibited a person who has not put in 10 years in deed writing till they pass an examination in terms of rules to be framed under amended section 69B, remained as dead letters on the statute book in absence of promulgation of rules for 5-6 years. Thus there was no occasion for them to appear in any examination which was conduced for the first time in the year 2000 after 7 years of prohibition in terms of amended section 68B.Accepting the contention of petitioners thereof, the learned Single Judge observed that in absence of rules, the statutory provisions could not be given effect to for reasons attributed to the respondents themselves for which the petitioners cannot be penalized. The learned Judge observed that having framed rules in 1997 it was respondent themselves who did not hold the examination in the year 2000 and as such till that time the petitioners cannot be denied the right to practice vocation for the reasons attributable to the respondents alone. The learned Single Judge was of the view that had the respondents held the examination in time, the petitioners may have competed and could have continued with their vocation. It was also observed that the Court at the same time cannot lose sight of the fact that the petitioners over the years gained experience and can draw better documents in view of their vast experience. The learned Judge thus confirmed the interim order dated 5.8.2003, whereby the deed writers were permitted to perform the work of document writers pending adjudication of the writ application. While allowing the writ application, the learned Single Judge nonetheless observed that the order shall not be treated as grant of benefit to those who are similarly situated and have chosen not to approach this court.On the other hand, counsel for the respondents submits that the validity of Rules 1996 has been upheld by a Division Bench and was not interfered with by Hon’ble Apex Court. Further more, both the Division Bench in the case of Awadhesh Tiwary & Ors contained in Annexure-A and the learned Single Judge in the case of Arvind Prasad & Ors contained in Annexure-B observed that 10 years cut off date would be reckoned from the date the Amended Act came into force which date is 30.7.1991. In other words, the contention is that those deed writers who had completed 10 years of professional vocation prior to 10.7.1991 are to be granted licence without appearing in an examination. The respondents state that some of the petitioners moved this court earlier against letter no.615 dated 5.6.2000 regarding written examination which was dismissed. The respondents further submit that the case of Arjun Prasad and others which was allowed on 10.8.2007, was filed in the year 2003.The respondents state that similarly situated deed writers also moved this court in C.W.J.C.No.6838 of 2008 (Md. Zakir Hussain & Ors Vs State of Bihar & Ors) and reliance was placed upon order of learned Single Judge in the case of Arjun Prasad & Ors (C.W.J.C.No.1172 of 2003) disposed of on 10.8.2007. The learned Single Judge by order dated 14.11.2011 rejected the writ application on the ground that the relief in C.W.J.C.No.1172 of 2003 (Arjun Prasad & Ors) was granted by way of exception and the petitioners have moved this court belatedly in the year 2008. The learned Judge further observed that the petitioners having sat in the examination and having failed cannot be allowed to continue as deed writers. I have heard counsel for the parties. I am too of the view that the petitioners here in this writ application would not be entitled to reliefs as they have belatedly moved this court in the year 2008. Further more, this case cannot be compared with that of Arjun Prasad & Ors Vs State of Bihar (C.W.J.C.No.1172 of 2003) which was filed in 2003 and the relief was granted by way of exception. The vires of 1996 Rules have been upheld by a Division Bench. Further more both the Division Bench in case of Awdhesh Tiwary & Ors (supra) as well as learned Single Judge in the case of Arbind Prasad & Ors has held that only those persons would be permitted licence without appearing in examination who has put in 10 years of profession in document writing prior to coming into force the Registration Amendment Act, 1991 on 31.7.1991.The petitioners lastly submitted that it is true that Rule 3(C) of 1996 Rules provides that a person may be granted licence without appearing in examination, who has been in profession of document writers for at least 10 years prior to coming into force Registration (Bihar) Amendment Act, 1991on 31.7.1991. However, Rule 7(2) of 1996 Rules states that authority may grant a licence to any person who is in profession for the last 10 years on the date of coming into force of these rules without requiring him to appear in the test examination. Thus the petitioners submit that Rule 7(2) has relaxed Rule 3(C) and section 68B. In order to appreciate the contention of petitioners, both Rule 3 and Rule 7(2) of 1996 Rules are quoted herein below: 3.(a)Qualifications.- The following shall be qualifications for a deed writer- (a) he is a citizen of India and has attained at least the age of 18 years. (b) he has passed the matriculation examination or any other equivalent recognized examination. (c) he has passed Deed writers licensing examination conducted under Rule: Provided that a licence may be granted to any person who has been in the profession of the documents writer for at least ten years prior to the date of the Registration (Bihar Amendment) Act, 1991 came into force, without requiring him to appear in the written test referred to in sub-section (1) if the Registrar of a District or any other officer authorized by him in this behalf is satisfied that he is otherwise fit to take the profession of a document writer”.“7(2). The licensing authority may grant a licence to any person who is in the profession for the last 10 years on the date of coming into force of these rules without requiring him to appear in the text examination”.Counsel for the petitioners is correct in his submission that Rule 3© and Rule 7(2) are contradictory to each other regarding the dates on which the Registration (Bihar Amendment) Act, 1991 came into force. The date on which the Bihar Amendment Act, 1991 came into force is very relevant as 10 years past experience is to be gathered from that date. Rule 3(C) states that licence can be granted to any person who has been in profession of a document writer for at least 10 years prior to the date of Registration (Bihar Amendment) Act, 1991, whereas Rule 7(2) states that authority may grant licence to any person who is in profession for the last ten years on the date of coming into force of these rules. Rule 3(C) refers to the date on which the Amendment Act, 1991 came into force as cut off date for counting the preceding ten years experience, whereas as per Rule 7(2), the cut off date for counting the past ten years experience would be the date on which the rules came into force i.e. 13.3.1997.A provision or rule which is in consonance with the substantive Act is to be preferred to the Rule which is at variance with the substantive law. A rule can supplement the law but cannot supplant it. In this light, the conflicting provisions mentioned in Rule 3(C) and Rule 7(2) is to be considered. The amended section 68B provides that a licence can be granted to any person who has been in profession of document writer for at least ten years prior to the date of Registration (Bihar Amendment) Act, 1991 came into force. Thus, the cut off date for counting the past ten years experience is itself mentioned in the Act and as such any provision or rule which provides otherwise has to be read down being in conflict with statutory provisions and legislative intent. The matter would been different and might have weighed in favour of the petitioner if the Amended Act itself did not provide the cut off date which is not the case here. Only in absence of cut off date in substantive Act, the cut off dates mentioned in the rules would be of relevance. It is to be remembered that the Rules are only creature of Statute drawing their roots from statutory provisions. The Rules 1996 have been framed in view of power conferred by amended section 69(b)(b) of the 1991 Amendment Act. The rules which are in conflict with the Parent Act is to be ignored in favour of the provision which is in conformity with the substantive enactment. Rule 3(c) in the context which supplements the substantive enactments and gives fillup to legislative intent is to be applied while deciding the issue. Thus, I hold that the petitioners having less than 10 years of experience on 10.7.1991, the day the Registration (Bihar Amendment) Act, 1991 came into force can be allowed to do the work of deed writing, if they pass the examination provided under 1996 rules.With the aforesaid observations and directions this writ application stands disposed of.
" 2013 AIR (NOC) 33"